Lopez v. NM Construction ( 2009 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 RICARDO M. LOPEZ and
8 FLORA VICTORIA LOPEZ,
9 Plaintiffs-Appellants,
10 v. NO. 29,531
11 STATE OF NEW MEXICO,
12 CONSTRUCTION INDUSTRIES
13 DIVISION, DAVID SANCHEZ
14 and ELIAS MESTAS,
15 Defendants-Appellees.
16 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
17 Abigail Aragon, District Judge
18 Ricardo M. Lopez
19 Flora Victoria Lopez
20 Hobbs, NM
21 Pro Se Appellants
22 Jarmie & Associates
23 Mark D. Jarmie
24 Albuquerque, NM
25 for Appellees
1 MEMORANDUM OPINION
2 WECHSLER, Judge.
3 Plaintiffs Ricardo and Flora Lopez appeal the district court’s dismissal of their
4 complaint. They argue that the State should be estopped from invoking the statute of
5 limitations in the Tort Claims Act when right and justice demand and when the
6 Construction Industries Division (CID), David Sanchez, and Elias Mestas
7 (Defendants) used fraud in issuing a certificate of occupancy. [DS 2] This Court
8 issued a notice of proposed summary disposition on August 20, 2009, proposing to
9 affirm. Plaintiffs filed a memorandum opposing summary affirmance on September
10 10, 2009, which we have given due consideration. We affirm the district court’s grant
11 of Defendants’ motion to dismiss.
12 “We review de novo whether a particular statute of limitations applies.”
13 Jaramillo v. Gonzales, 2002-NMCA-072, ¶ 8, 132 N.M. 459, 50 P.3d 554.
14 Plaintiffs’ complaint, filed on November 7, 2008, sets forth various allegations
15 in the form of a timetable. [RP 1-3] For the first date listed, February 11, 2000, the
16 complaint alleges:
17 The Certificate of Occupancy in reference was issued without our cabin
18 being finished. It has no proper easement for Power because Mora-San
19 Miguel Electric Coop Inc[.] had to discontinue the power due to the
20 builder trespassing on neighboring property belonging to Garcia’s family
2
1 tracts south of county road 121[,] Rociada, San Miguel [County,] New
2 Mexico.
3
4 [RP 1] A copy of the certificate dated February 11, 2000, and apparently signed by
5 Defendant David Sanchez, is attached to the complaint. [RP 12] None of the entries
6 for the eight dates following, which extend through April 28, 2004, nor anything else
7 in the body of the complaint, mentions any further act by any of the Defendants. The
8 complaint mentions subsequent events, including Plaintiffs’ complaint to the attorney
9 general, correspondence with the electric co-op, difficulties in closing on the property,
10 and attempts to prevent foreclosure of the property or recover it after foreclosure. [RP
11 2-4] Our own review of the record does not reveal any activity relevant to this
12 controversy between 2004 and the filing of the present complaint in November 2008.
13 The New Mexico Tort Claims Act provides: “Actions against a governmental
14 entity or a public employee for torts shall be forever barred, unless such action is
15 commenced within two years after the date of occurrence resulting in loss, injury or
16 death.” NMSA 1978, § 41-4-15(A) (1977). “The purpose of a statute of limitations
17 is to protect prospective defendants from the burden of defending against stale claims
18 while providing an adequate period of time for a person of ordinary diligence to
19 pursue lawful claims.” Garcia v. La Farge, 119 N.M. 532, 537, 893 P.2d 428, 433
20 (1995).
3
1 In its order dismissing Plaintiffs’ case with prejudice, the district court stated,
2 after noting that Plaintiffs were aware that they had a cause of action no later than
3 April, 2000, “[t]here exists no reason that the applicable statute of limitations should
4 be tolled beyond, at the latest, 2004.” [RP 68] Thus, the court allowed for the
5 possibility that there may have been reasons justifying stopping the running of the
6 statute of limitations through an unspecified date in 2004. The two-year statute of
7 limitations therefore expired sometime in 2006 at the latest.
8 In their docketing statement, Plaintiffs argue that Defendants should be
9 estopped from relying on the statute of limitations in the present circumstances. [DS
10 3-4] Our review of the record before us, including the tape log of the hearing on
11 Defendants’ motion to dismiss, does not reveal that Plaintiffs made this argument in
12 district court and thereby preserved it for review on appeal. “To preserve an issue for
13 review on appeal, it must appear that [the] appellant fairly invoked a ruling of the trial
14 court on the same grounds argued in the appellate court.” Woolwine v. Furr’s, Inc.,
15 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987). Preservation serves the
16 purposes of (1) allowing the trial court an opportunity to correct any errors, thereby
17 avoiding the need for appeal, and (2) creating a record from which the appellate court
18 can make informed decisions. See Diversey Corp. v. Chem-Source Corp., 1998-
4
1 NMCA-112, ¶ 38, 125 N.M. 748, 965 P.2d 332.
2 To cover the possibility that an estoppel argument was preserved, we address
3 it briefly.
4 Under the doctrine of equitable estoppel, the party estopped from
5 asserting a statute of limitations must have (1) made a statement or
6 action that amounted to a false representation or concealment of material
7 facts, or intended to convey facts that are inconsistent with those a party
8 subsequently attempts to assert, with (2) the intent to deceive the other
9 party, and (3) knowledge of the real facts other than conveyed. The
10 party arguing estoppel must (1) not know the real facts, and (2) change
11 his or her position in reliance on the estopped party’s representations.
12
13 Blea v. Fields, 2005-NMSC-029, ¶ 20, 138 N.M. 348, 120 P.3d 430. Leaving aside
14 the question of whether equitable estoppel may be asserted against the State (see
15 Lopez v. State, 1996-NMSC-071, ¶ 20, 122 N.M. 611, 930 P.2d 146 (“New Mexico
16 courts have been reluctant to apply estoppel against the state and its agencies.”)), we
17 conclude that equitable estoppel does not apply to the present factual setting. Even if
18 we assume that Defendants made a false representation that the cabin was suitable for
19 occupancy and that they knew the real fact that it was not, there is no evidence that
20 they could have reasonably intended to deceive Plaintiffs, who were aware of some
21 of the obvious defects such as the absence of electricity and water at the time the
22 certificate was issued. Further, the evidence suggests that Plaintiffs knew that the
23 cabin was unsuitable for occupancy, and there is no evidence that they changed their
5
1 position in detrimental reliance on Defendants’ representation otherwise.
2 Accordingly, we conclude that at the time Plaintiffs filed their complaint, the
3 statute of limitations had expired, and the doctrine of equitable estoppel does not
4 apply in these circumstances.
5 Plaintiffs assert in their memorandum in opposition that they were denied due
6 process when the district court failed to issue an order to show cause to enforce
7 Plaintiffs’ subpoena for CID records related to their property. This issue was not
8 raised in Plaintiffs’ docketing statement, nor did Plaintiffs move to amend the
9 docketing statement to add this issue. See Rule 12-208(D)(4), (F) NMRA.
10 Accordingly, we decline to address this issue. But, we observe that the subpoena was
11 directed to Defendants’ attorney and not to Defendants themselves. [RP 56] At the
12 hearing on Defendants’ motion to dismiss, the attorney noted that he had been
13 subpoenaed personally and that he had no such records in his possession. [RP 58,
14 9:09:44] Further, Defendants’ motion to dismiss was based on information on the
15 face of the complaint indicating that the statute of limitations had expired, as the
16 certificate of occupancy was issued on February 11, 2000, and the complaint was filed
17 over eight years later on November 7, 2008, well beyond the two-year limitations
18 period provided by Section 41-4-15(A). We fail to see, nor does the memorandum
6
1 opposing summary affirmance inform us, what information CID could have provided
2 to change this outcome.
3 For the reasons stated above, we affirm.
4 IT IS SO ORDERED.
5 _______________________________
6 JAMES J. WECHSLER, Judge
7 WE CONCUR:
8 ________________________________
9 JONATHAN B. SUTIN, Judge
10 ________________________________
11 RODERICK T. KENNEDY, Judge
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